But for all the absurdities of the anti-bikie legislation, the bill currently being considered by the Queensland parliament is probably worse.

The bogey-man in this bill is “out-of-control” parties. No doubt you can conjure up such a threat to public order in your mind. Hundreds of drunk teenagers spilling out on the street and damaging nearby property.

But according to the draft bill, a party is a gathering of 12 or more people. And it is considered out-of-control if three people at that party do something like be drunk in a public place, cause excessive noise, unreasonably block the path of a pedestrian, litter in a way that might cause harm to the environment, or use “indecent” language.

The punishment for holding a party that gets out-of-control? A $12,000 fine or a year’s jail. In other words, a party host is punished for the actions of party guests. For good measure, the bill allows police to enter property uninvited without a warrant.

Out of control parties are a classic moral panic. They involve teenagers. They involve alcohol. They involve new technologies – house parties are now being organised on social media. This apparently makes them worse than they used to be.

Of course before Twitter and Facebook there was the text message. People panicked about text message parties too. And before text messages? Well, teenagers clearly found some way to organise wild parties that ended in arrests.

Modern police forces have existed since the nineteenth century. For two centuries parliaments have been loading the criminal statutes up with new offenses. According to the government, “the ever increasing size, frequency and societal impact of these out-of-control events in recent times has necessitated the development of specific legislation”. Yet everything that makes an out-of-control party out-of-control is illegal already.

It is already illegal to:

be drunk and disorderly

riot

harass pedestrians

use indecent language

breach the peace

be a public nuisance

threaten another person

throw a bottle

damage property

assemble unlawfully

supply minors with alcohol

fight

show your private parts inpublic

be a hoon

light fireworks

endanger the safety of another individual

litter

trespass, and

be excessively noisy.

A recurring feature of so many legislative proposals in our modern era is that they mirror existing offences. At best, this makes them redundant. At worst – as in this anti-party bill – they offer prosecutors and law enforcement officers a menu to pick and choose whatever charge will meet with the greatest punishment.

In other words, they vest police officers and prosecutors with enormous discretion to act, arrest, and charge however they like. They have to. There’s no way the Queensland police could enforce the law, as written, on any of the innumerable parties that occur every weekend across the state. Three people swearing at a party of more than a dozen guests that annoys the neighbours? Hard to imagine a party that wouldn’t fit this criteria.

A basic tenet of liberal democracy is that politicians – the representatives of the people – write the laws to shape the society they want. The permanent, administrative arm of government merely enforces those laws, neutrally and consistently.

That’s the ideal, anyway. But not all statutes are enforced equally. The police, and their prosecutors, have an enormous amount of discretion about what laws they chose to focus on. (Hence the periodic “crackdowns” on jay-walking or speeding. If all laws were enforced at all times, there would be no need for crackdowns.)

No matter how many rules we impose on police work, discretion is inevitable. Inevitable but not desirable. A liberal democracy is a government of laws, not a government of men, as James Adams said. As far as possible, we don’t want to trust justice and our liberty to the judgment of fickle individuals.

Police officers are no better or worse than the rest of us. There are bad eggs in law enforcement, as there are in the general public. And good eggs can sometimes have bad days. Queensland’s anti-party legislation empowers good eggs and bad eggs alike.

As does the anti-bikie legislation, which is so over-blown that it borders on surrealism. Such laws invite the sort of miscarriages of justice that a liberal democratic legal system should strive to avoid Australians who don’t live in Queensland should be paying attention too.

One feature of Australian federalism is that states learn from each other. A law in one state is apt to be copied by another state. We saw anti-bikie laws replicated across the country earlier this decade. No question that all state governments will consider imposing Queensland-style laws themselves.

Defending his out-of-control parties bill, the Queensland Police Minister, Jack Dempsey, has argued that “the majority of people who do the right thing have nothing to fear“. Well, that’s not the way the bill is written. Not if the letter of the law is enforced. No free society should rest their liberties on the discretion of the agents of the state.

Chris Berg is a Research Fellow with the Institute of Public Affairs. His most recent book is In Defence of Freedom of Speech: from Ancient Greece to Andrew Bolt. Follow him on Twitter: @chrisberg This item appeared first on The Drum, the ABC online publication.

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Author:General Maddox

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